Robinson v Robinson - [2017] SASC 132

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ROBINSON v ROBINSON
[2017] SASC 132
Judgment of Judge Dart a Master of the Supreme Court
15 September 2017
SUCCESSION - FAMILY PROVISION - PROCEDURE - TIME FOR MAKING APPLICATION - EXTENSION OF TIME - APPLICATION TO BE BEFORE FINAL DISTRIBUTION
Plaintiff seeks an order for provision from his mother's estate - proceedings commenced more than two years after the grant of probate - estate fully distributed prior to the commencement of proceedings - plaintiff seeks an extension of time - in the circumstances the Court has no power to grant an extension of time.
Held:
1. The Court's jurisdiction is not enlivened.
2. Action dismissed.
Inheritance (Family Provision) Act 1972 s 6(c), s 8; Testator’s Family Maintenance Act 1918 s 4, referred to.
In Re Tiller, deceased; Gum v Tiller [1963] SASR 117; Blunden v Blunden & Anor [2008] SASC 286, applied.

ROBINSON v ROBINSON
[2017] SASC 132
JUDGE DART:

The plaintiff is the only son of Ms Christine Robinson, who died on 6 May 2014 (“the deceased”). The defendant is the deceased’s only daughter. In this action the plaintiff seeks an order for provision from his mother’s estate. The action is brought pursuant to the Inheritance (Family Provision) Act 1972 (SA) (“the Act”).
There is almost no evidentiary dispute as to the relevant facts in this matter. The facts can be summarised as follows:
·The first defendant is the sole named executor in the will of the deceased.
·The first defendant is the sole beneficiary named in the will.
·The principal asset in the deceased estate was real property at Hope Valley.
·Probate was granted to the first defendant on 30 June 2014.
·On 8 August 2014 the real property was transferred to the defendant in her capacity as executor. It was then transferred to her outright as the sole beneficiary.
·Accordingly, by 8 August 2014 the estate was fully distributed.
·The plaintiff first gave notice to the defendant of a potential claim by letter dated 16 November 2015.
·These proceedings were issued on 15 September 2016.
It is accepted that the plaintiff, as a child of the deceased, has standing to make a claim under the Act in respect of the estate of his late mother.[1] There is a significant hurdle for the plaintiff to overcome if he is to convince the Court that it is able, and appropriate, to make an order for provision out of his mother’s estate. The application was brought out of time and, accordingly, an extension of time is required.
[1] Section 6(c) of the Act.
The provisions of the Act dealing with extension of time are found in s 8, which provides as follows:
8—Time within which application to be made
(1)Subject to this section, an application shall not be heard by the Court at the instance of a person claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will, or letters of administration of the estate, of the deceased person.
(2)The Court may, after hearing such of the persons affected as the Court thinks necessary, extend the time for making an application for the benefit of this Act.
(3)An extension of time granted pursuant to this section may be granted—
(a)upon such conditions as the Court thinks fit; and
(b)whether or not the time for making an application pursuant to subsection (1) of this section has expired.
(4)An application for extension of time pursuant to this section shall be made before the final distribution of the estate.
(5)Any distribution of any part of the estate made before the application for extension of time shall not be disturbed by reason of that application or any order made thereon.
(6)An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate.
(7)Where an application has been made for the benefit of this Act, the Court may, if satisfied that it is just and expedient to do so, permit at any time prior to the final determination of the proceedings, the joinder of further claimants as parties to the application.
As can be seen, an application pursuant to the Act should be made within six months from the date of the grant of probate. This application was commenced more than two years after the grant of probate. An application must be made before final distribution of the estate. This application was made well after the final distribution of the estate. The section appears to create an insurmountable difficulty for the plaintiff.
Separately, it appears that the terms of sub-section (5) mean there would be no utility in granting an extension of time. The sub-section provides that the distribution of an estate made prior to the application for an extension of time is not to be disturbed by the making of an order extending time. Here, the whole of the estate having been distributed, there is nothing left in the estate for the Court to work with.
Notwithstanding the difficulties discussed above the plaintiff says that, given the defendant was both executor and beneficiary, there would be no prejudice to her in allowing an extension of time. The plaintiff accepts that the estate has been distributed, but says that that is an unduly narrow reading of the position. He urges the Court to take a liberal view of the concept of the estate being distributed. With respect, it is difficult to accept that the question of whether an estate has been distributed turns on the status of the beneficiary to whom it has been distributed.
The defendant says the Court should not hear the matter. It should simply be dismissed. She relies on a number of authorities for the proposition that the Court has no jurisdiction to entertain the plaintiff’s claim.
The use of the expression “shall not be heard”, in sub-section (1) of s 8, imposes a limit on the Court’s ability to entertain an application. It is a question of jurisdiction. The Court has the power to grant an extension, but that power is subject to limitations imposed by sub-sections (4) and (5).
The first authority the defendant relies upon is In Re Tiller, deceased; Gum v Tiller.[2] In that matter the Full Court was considering the operation of the provision which permitted an extension of time to make a claim under the Testator’s Family Maintenance Act 1918. That was the predecessor of the current legislation. The relevant provision was s 4, which provided as follows:
No application shall be heard by the Court at the instance of a party claiming the benefit of this Act unless the application is made within six months from the date of the grant in this State of probate of the will … of the testator: Provided that—
(a)    subject as hereinafter mentioned, the Court or a Judge after hearing such of the parties affected as it or he deems necessary may extend the time for making an application for the benefit of this Act;
(b)    the application for extension shall be made before the expiration of twelve months after the grant in this State of probate … and before the final distribution of the estate;
(c) where the application for the benefit of the Act is made more than six months after the grant … no distribution of any part of the estate shall be disturbed by reason of that application or any order made thereon;
(d)    an application under this Act shall be deemed to be made on the day when the summons, by which it is instituted, is served on the executor.
[2] [1963] SASR 117.
The provision is similar to the current provision. In In Re Tiller, deceased no application for an extension was made. The Court said:[3]
It seems to us that this language is unambiguous, and that the plain meaning is to prohibit the Court from hearing the application unless it is “made”—i.e., unless the summons, by which it is instituted, is served on the executor—within six months from the date of the grant of probate.
[3] In Re Tiller, deceased; Gum v Tiller [1963] SASR 117 at 120.
The Court said further:[4]
We think that it “defines the right” as to prescribing the “mode of proceeding by which a right is enforced”. But in this case the limitation of time is expressed to be a condition upon which the jurisdiction is given by the statute, and, unless that condition is satisfied, the Court has no jurisdiction.
[4] In Re Tiller, deceased; Gum v Tiller [1963] SASR 117 at 122.
A consideration of the operation of the current provision is found in Blunden v Blunden & Anor.[5] Relevantly, Bleby J said:[6]
Section 8(1) of the Act requires that an application “shall not be heard by the Court” unless the application is made within six months from the date of the grant of probate in this State. The application was made outside that time. While the Court has power to extend time under s 8(2) of the Act, s 8(4) requires that an application for extension of time “shall be made” before the final distribution of the estate. The estate was finally distributed on 20 June 2008. It is therefore not possible for the Court to extend the time within which to bring the plaintiff’s application. The Court has no discretion to exercise in that regard.
[5] [2008] SASC 286.
[6] Blunden v Blunden & Anor [2008] SASC 286 at [18].
The position is clear. The Court only has jurisdiction when it has a complying application before it. The subject application was not made within the six month period allowed by the Act. There was no application for an extension of that period prior to the final distribution of the estate. The Court is not able to extend the time for the bringing of the application. In the circumstances, the Court does not have before it an application which enlivens the Court’s jurisdiction. The action is dismissed. I will hear the parties as to any consequential matters.